Howerton v. Iowa State Ins. Co.

• Decision Date: 29 March 1904
• Citation: 80 S.W. 27,105 Mo. App. 575
• Parties: HOWERTON et al. v. IOWA STATE INS. CO.
• Court: Missouri Court of Appeals

80 S.W. 27

105 Mo. App. 575

HOWERTON et al. v. IOWA STATE INS. CO.

St. Louis Court of Appeals. Missouri.

March 29, 1904.

INSURANCE — MERCHANDISE — VALUE — EVIDENCE — BURDEN OF PROOF — POLICY— CONSTRUCTION—RIDERS—TRIAL—ISSUES SUBMITTED—REFUSAL OF REQUESTS—STATUTES—CONSTRUCTION.

1. In an action on a fire insurance policy, the petition alleging the value of the merchandise destroyed and the resulting loss to plaintiffs, the burden was on plaintiffs to introduce proof in support of such averments.

2. From the circumstances attending the loss of a stock of merchandise by fire, the law does not require evidence conclusive in character or mathematical in certainty of the value of the property destroyed, but merely the best obtainable under the conditions presented.

3. Rev. St. 1899, § 4160, defines the word "property" in a legislative act as including real and personal property, unless such construction is plainly repugnant to the legislative intent or context of the act. Sections 7969 and 7970 provide for valued policies on real estate, but expressly recite that they shall have no application to personal property. Section 7979, passed subsequent to the enactment of the sections just cited, provides that no company shall take a risk on any property greater than three-fourths of the value of the property insured, and, when taken, its value shall not be questioned in any proceeding. Held, that section 7979, as it contains no proviso limiting its application to real property, embraces both real and personal property.

4. Insurance policies must in all cases be liberally construed in favor of the insured.

5. Where an insurance policy provided for the taking of an itemized inventory of the stock insured within 60 days, but a rider attached to the policy waived this provision, and provided that an inventory should be taken at least once a year during the life of the policy, failure of insured to take an inventory was not a defense to an action on the policy, where the property was destroyed before the expiration of a year from its issuance.

6. In an action on an insurance policy, where issue was joined on the question of insured's compliance with a requirement of the policy to keep books of account, and to preserve them in another building, secure against fire, an instruction submitting such issue should have been given.

7. In an action on an insurance policy, requests calling for the submission to the jury of an issue raised in the case as to whether the insured kept books of account, as required by the policy, were properly refused, where they also included noncompliance by insured with a clause requiring the taking of inventory, the time limit for the taking of which had not expired at the date of the loss.

Appeal from Circuit Court, Scotland County; E. R. McKee, Judge.

Action by Gus Howerton and others against the Iowa State Insurance Company. From a judgment for plaintiffs, defendant appeals. Reversed.

Smoot, Boyd & Smoot, for appellant. Mudd & Pettingill, for respondents.

Statement.

REYBURN, J.

On October 11, 1901, the plaintiffs (respondents herein) purchased from the Gorin Mercantile Company a general stock of merchandise, and continued the business of retail merchants at Gorin, Mo., until the 5th day of May, 1902, when their entire stock was destroyed by fire. On the 12th of July, 1901, the Gorin corporation had obtained from defendant (appellant herein) a policy against loss or damage by fire to an amount not exceeding $1,000 upon its stock in trade. Upon the purchase the insured indorsed this policy to respondents, which transfer was approved by appellant. The contract of insurance was evidenced by a policy designated the "mercantile form," and embracing numerous provisions, many of which are not involved, but such as bear upon this controversy will be presented and considered as they appear material. Appellant on May 15, 1902, repudiated any liability upon the policy, and this action was brought thereon. The petition exhibited the foregoing facts, coupled with the allegations that at the time of the issuance of the policy, and at all times from such date to the occurrence of the fire, the stock of goods insured was of the value of $3,600, and that while the policy was in force, May 5, 1902, all the goods insured, and of the value stated, were destroyed by fire, and plaintiffs' loss thereon was $3,600. It further contained averments of compliance by the assignor and by the plaintiffs with all the conditions of the policy, which was filed with and made part of the petition. The amended answer, upon which trial was had, was made up of a qualified general denial, a specific denial of the value of the property destroyed, and special defenses based upon the conditions of the policy. The first of such affirmative defenses set forth that, as one of the conditions material to the risk, the policy provided that the insured thereby covenanted and warranted to keep a set of books showing a complete record of the business transacted, including all purchases and sales, and to take an itemized inventory of the stock of merchandise covered by the policy at least once every year, and to keep such books, with the last two inventories, securely locked in a fireproof safe at night, and at all times when the store was not actually open for business, and, in absence of a safe, to keep them securely in another building not exposed to fire; and, if such invoice had not been taken within 12 months prior to the date of the policy, the assured agreed to take an itemized inventory of the stock within 60 days thereafter; and, in case of loss, the assured warranted and covenanted to produce and submit such books and inventories for examination; and, as a condition precedent in case of loss, if assured should not have, or should fail to produce or submit for examination, such inventories or books, then no suit should be maintained on the policy against appellant. The answer further quoted from the policy, as another condition attached to and made part thereof, that the assured thereby agreed to take an inventory at least once a year during the life of the policy, and to keep books of account correctly detailing all purchases and sales, and keep such inventory and books in a fireproof safe, or in some place secure against fire in another building, during the hours the store was not open for business, and, in case of loss, that the assured agreed to produce such books and inventories, and, in event of failure to produce same, the policy should be void, and no legal action maintainable thereon. The answer thereupon charged violations of such warranties and conditions, and consequent avoidance of the contract of insurance, and failure of right in plaintiffs of recovery thereon. The answer, continuing, embodied the averment that, succeeding the fire, the adjusters of appellant went to Gorin to investigate the causes and circumstances of the fire, and demanded of plaintiffs the production of their books and invoices required by the above provisions of the policy, and plaintiffs informed the representatives of defendant that they had no such books or...